The Official Journal of the European Union, OJEU, has published on December 24th, Directive 2008/115/EC of the European Parliament and of the Council of December, 16th 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. This Directive establishes a horizontal set of rules, applicable to all third-country nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State.

The Directive on return of illegal immigrants, which obtained the favourable opinion of the European Parliament early June this year, sets out common standards and procedures to be applied in Member States for returning illegally staying third country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.

In line with the 1989 United Nations Convention on the Rights of the Child, the “best interests of the child” will be a primary consideration of Member States when implementing this Directive. Alongside this principle, the Directive expressly establishes the obligation to respect the principle of protection of family life, as well as an obligation to take into account  the state of health of the third-country national concerned. It is also established that Member states will, when implementing the Directive, be fully respectful with the “principle of non-refoulement”.

This legal text establishes the conditions under which Member states will be entitled to issue a return decision to any third country national staying illegally on their territory, as well as the actions to be taken in situations when those third-country nationals staying illegally on the territory of a Member State hold a valid residence permit or other authorisation offering a right to stay issued by another Member State. In such cases, they will be required to go to the territory of that other Member State immediately.

Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive.

The Directive establishes a voluntary departure period for illegal immigrants of between seven and thirty days, to be set in the return decision. This period may be extended by Member states under certain special circumstances such as the length of stay, the existence of children attending school and the existence of other family and social links.

The text provides some procedural safeguards regarding the form and remedies when implementing those measures, as well as the conditions to be adopted on detention for the purpose of removal. Those conditions also take into account special cases related to detention conditions for specially vulnerable persons, children, families and other situations which may fall under special provisions.

Application of this Directive is without prejudice to the obligations resulting from the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967. Its provision will replace those established on Articles 23 and 24 of the Convention implementing the Schengen Agreement.

Directive  2008/115/EC will enter into force on January 13th, 2009, and Member states will bring into force the laws, regulations and administrative provisions necessary to comply with by December, 24th 2010.